Legal expert expects Supreme Court to overturn Prop. 8

Next year, the U.S. Supreme Court could force the federal government to recognize same-sex marriages, but leave California's ban on them intact.

Southern California legal experts believe the court is likely to strike down a key provision of the federal Defense Of Marriage Act, but some are less confident about the fate of California's Proposition 8.

On Friday, the court announced it will review the ruling striking down Prop. 8, as well as whether Congress can deny federal benefits for married couples to same sex-couples married in states where same-sex marriage is allowed.

Erwin Chemerinsky, the dean of the University of California, Irvine law school, is confident about how the Supreme Court will end up ruling on Prop. 8.

"I believe the court will find that Prop. 8 and (the Defense Of Marriage Act) are unconstitutional," Chemerinsky said. "The court decision will be 5-4, and I predict Justice Kennedy will write it. The court will say that the government has no legitimate interest in denying gays and lesbians the right to marry.

Kennedy wrote the majority opinions in 1996's Romer v. Evans decision, in which the Supreme Court struck down a Colorado law that declared homosexuals could not be declared a protected class, and 2003's Lawrence v. Texas, which struck down Texas' sodomy law.

"Justice Kennedy wants to write the next Brown v. Board of Education, not the next Plessy v. Ferguson," Chemerinsky said.

The 1896 Plessy v. Ferguson Supreme Court ruling upheld the constitutionality of racial segregation in the United States - most famously enshrined in the doctrine of "separate but equal" - before it was overturned with 1954's Brown v. Board of Education ruling against segregated schools.

Although gay marriage is legal in nine states (Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington) and the District of Columbia, 31 states have amended their constitutions to prohibit it. Among them, California.

In 2008, 52 percent of California voters approved Prop. 8, which declared that "only marriage between a man and a woman is valid or recognized in California."

The proposition was a response to a California Supreme Court ruling in May 2008 that declared the state's ban on same-sex marriages was unconstitutional. Two years later, a federal judge ruled that it violated the due-process and equal-protection clauses of the U.S. Constitution, saying that because same-sex California couples had been given the right to marry, the state could not then take it away.

The 9th U.S. Circuit Court of Appeals affirmed that decision, but continued a stay on the ruling, leaving Prop. 8 in place until the U.S. Supreme Court has its say, which is expected in 2013.

The Supreme Court will also consider a key provision of the 1996 federal law that defines marriage as the legal union of one man and one woman. Four federal courts and two appeals courts have struck down a provision in the Defense Of Marriage Act that declares that only heterosexual married couples can receive federal benefits.

"I think it's more likely than not that they will agree with numerous courts by now that Section 3 of the Defense of Marriage Act is unconstitutional," said USC law professor David B. Cruz. "That's important. The last time the (Government Accountability Office) looked at it, they found some 1,138 federal regulations that made marital rights important."

So same-sex couples in Maryland and the District of Columbia - where many federal employees live - would be able to receive the same benefits as their heterosexual peers could, but other states, such as Virginia, also home to many federal employees, would not be forced to permit same-sex marriage.

But reading the tea leaves is harder when it comes to the fate of Prop. 8.

"In terms of the Prop. 8 case, it's hard to tell," said professor Doug NeJaime, who teaches "Law & Sexuality" and other courses at Loyola Law School in Los Angeles. "The fact that they took the case suggests that they're not likely to just follow the same line of reasoning as the Ninth Circuit."

The Supreme Court threw both sides a curveball on Friday, asking them to prove they have standing to make the appeals in the case.

"The standing question is significant, which means they could actually not give us a ruling on the merits of Prop. 8 and just say they have no standing," NeJaime said. "In which case, it's not entirely clear what that means."

The cases will be argued before the court in March, and decisions are expected by late June.

"If a majority of justices agree that they don't have standing, then the Ninth Circuit ruling goes away," Cruz said. " but the trial court opinion is still there and same-sex couples can get married again in California."

Out of the nine justices, if five of them either think that Prop. 8 is unconstitutional or think that the sides don't have standing, then same-sex couples win, he said.